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This is a Bill, not an Act. For current law, see the Acts databases.
New South Wales
Mining Amendment (Mineral Claims--Opal)
Bill 2023
Contents
Page
1 Name of Act 2
2 Commencement 2
Schedule 1 Amendment of Mining Act 1992 No 29 3
Schedule 2 Amendment of Native Title (New South Wales) Act 1994 No 45 11
I certify that this PUBLIC BILL, which originated in the LEGISLATIVE COUNCIL, has finally
passed the LEGISLATIVE COUNCIL and the LEGISLATIVE ASSEMBLY of NEW SOUTH WALES.
Clerk of the Parliaments
egislative Council
2023
New South Wales
Mining Amendment (Mineral Claims--Opal)
Bill 2023
Act No , 2023
An Act to amend the Mining Act 1992 to provide for the validation of certain mineral claims and
matters relating to the mineral claims.
Mining Amendment (Mineral Claims--Opal) Bill 2023 [NSW]
The Legislature of New South Wales enacts--
1 Name of Act
This Act is the Mining Amendment (Mineral Claims--Opal) Act 2023.
2 Commencement
This Act is taken to have commenced on 14 February 2023.
Page 2
Mining Amendment (Mineral Claims--Opal) Bill 2023 [NSW]
Schedule 1 Amendment of Mining Act 1992 No 29
Schedule 1 Amendment of Mining Act 1992 No 29
Schedule 6 Savings, transitional and other provisions
Insert in appropriate order--
Part 28 Validation of certain mineral claims by Mining
Amendment (Mineral Claims--Opal) Act 2023 and
related matters
196 Definitions
In this part--
affected mineral claim means a mineral claim--
(a) purportedly granted, renewed or transferred during the relevant period,
and
(b) that, but for the operation of this part, would be invalid because of a
failure to comply with section 266(4).
amendment Act means the Mining Amendment (Mineral Claims--Opal) Act
2023.
assent date means the date of assent to the amendment Act.
commencement means the commencement of the amendment Act.
Crown--
(a) means the Crown within the meaning of the Crown Proceedings Act
1988, and
(b) includes an officer, employee or agent of the Crown.
current affected mineral claim--see clause 198(1).
expired affected mineral claim--see clause 197(1).
prescribed date, for an affected mineral claim, means the earlier of the
following--
(a) the date on which the application taken to have been made under clause
199(1) or 200(2) in relation to the affected mineral claim is determined
by the Secretary,
(b) the date on which the application taken to have been made under clause
199(1) or 200(2) in relation to the affected mineral claim is withdrawn.
relevant period means the period--
(a) starting on 1 January 2015, and
(b) ending on 13 February 2023.
197 Validation of expired affected mineral claims
(1) This clause applies to an affected mineral claim (an expired affected mineral
claim) that, immediately before the commencement--
(a) had ceased to have effect and not been renewed, or
(b) had been cancelled.
Example-- An affected mineral claim was granted and renewed twice during the
relevant period. The term of the last purported renewal of the affected mineral claim
ceased to have effect before 14 February 2023 and the affected mineral claim was not
renewed. The affected mineral claim is an expired affected mineral claim.
(2) Despite the failure to comply with section 266(4), the expired affected mineral
claim is taken to have been valid.
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Mining Amendment (Mineral Claims--Opal) Bill 2023 [NSW]
Schedule 1 Amendment of Mining Act 1992 No 29
(3) Without limiting subclause (2), the following are taken to have been valid--
(a) a purported grant, renewal, variation, transfer or cancellation of the
expired affected mineral claim during the relevant period,
(b) a condition to which the expired affected mineral claim was purportedly
subject from time to time, including any variation or enforcement of the
condition,
(c) an approval or authorisation issued by the Secretary under a condition
of the expired affected mineral claim, including any enforcement of the
approval or authorisation,
(d) each term, including the expiry, of the expired affected mineral claim,
(e) the use of land in accordance with the expired affected mineral claim,
(f) the exercise of any other right in accordance with the expired affected
mineral claim.
198 Validation of current affected mineral claims
(1) This clause applies to an affected mineral claim (a current affected mineral
claim) that, immediately before the commencement, was purportedly in force.
Example-- An affected mineral claim was granted and renewed during the relevant
period. The term of the last purported renewal of the affected mineral claim was still in
force immediately before 14 February 2023. The affected mineral claim is a current
affected mineral claim.
(2) Despite the failure to comply with section 266(4), the current affected mineral
claim--
(a) is taken to be, and always to have been, valid, and
(b) continues to be valid and in force until the prescribed date.
(3) Without limiting subclause (2)--
(a) a purported grant, renewal, variation or transfer of the current affected
mineral claim during the relevant period is taken to be, and always to
have been, valid, and
(b) a condition to which the current affected mineral claim was purportedly
subject from time to time is taken to be, and always to have been, valid
during the relevant period and to continue to be valid until the
prescribed date, including any variation or enforcement of the
condition, and
(c) an approval or authorisation issued by the Secretary under a condition
of the current affected mineral claim is taken to be, and always to have
been, valid during the relevant period and to continue to be valid until
the prescribed date, including any enforcement of the approval or
authorisation, and
(d) the use of land in accordance with the current affected mineral claim is
taken to be, and always to have been, valid during the relevant period
and to continue to be valid until the prescribed date, and
(e) the exercise of any other right in accordance with the current affected
mineral claim is taken to be, and always to have been, valid during the
relevant period and to continue to be valid until the prescribed date.
199 Ability to determine affected mineral claims
(1) From the commencement--
(a) for an affected mineral claim that was purportedly granted during the
relevant period, whether or not purportedly renewed during the relevant
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Mining Amendment (Mineral Claims--Opal) Bill 2023 [NSW]
Schedule 1 Amendment of Mining Act 1992 No 29
period--the application for the grant of the affected mineral claim is
taken to be an application for the grant of the mineral claim made on the
commencement, and
(b) for an affected mineral claim that was granted before the relevant period
and purportedly renewed only once during the relevant period--the
application for the renewal of the affected mineral claim during the
relevant period is taken to be an application for the renewal of the
mineral claim made on the commencement, and
(c) for an affected mineral claim that was granted before the relevant period
and purportedly renewed more than once during the relevant period--
the application for the first renewal of the affected mineral claim during
the relevant period is taken to be an application for the renewal of the
mineral claim made on the commencement.
(2) For subclause (1)(a)-(c), the applicant for the application taken to be made on
the commencement is taken to be--
(a) the person who made the application for the relevant grant or renewal
during the relevant period, or
(b) if a person is recorded as the holder of the mineral claim under section
202 before the prescribed date, that person.
(3) To avoid doubt, sections 178(2) and 197(2) do not apply to an application
taken to be made under subclause (1).
(4) An application taken to be made under subclause (1) must be determined in
accordance with this Act as in force on the date the determination is made.
(5) In determining an application taken to be made under subclause (1), the
Secretary may, by written notice given to the applicant, require the applicant
to give the Secretary, by the date stated in the notice, additional information
reasonably required to decide the application.
(6) If the applicant does not give the additional information as required by the
notice, including by the date stated in the notice, the application may, despite
subclause (1), be rejected by the Secretary.
(7) Also, in determining an application taken to be made under subclause (1), the
Secretary may be satisfied the applicant has complied with section 266(4)(a)
if the applicant or a previous holder of the affected mineral claim paid the
standard compensation payable when--
(a) the affected mineral claim was last purportedly granted or renewed
before the commencement, or
(b) the application is determined by the Secretary.
Example-- If the standard compensation payable when an application is determined
is more than the standard compensation payable when the claim was last purportedly
granted or renewed, the Secretary may require the applicant to pay the difference.
(8) Without limiting subclause (4), in granting an application taken to be made
under subclause (1), a condition may be imposed or varied in accordance with
this Act.
(9) If an application for a mineral claim taken to be made under subclause (1) is
granted or renewed, the mineral claim has exclusive effect from the date on
which it is granted or renewed.
(10) If an application for a mineral claim taken to be made under subclause (1) is
refused or withdrawn, the applicant has no rights under the affected mineral
claim from the prescribed date.
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Mining Amendment (Mineral Claims--Opal) Bill 2023 [NSW]
Schedule 1 Amendment of Mining Act 1992 No 29
(11) This clause does not apply to--
(a) a current affected mineral claim that has purportedly been transferred or
to the purported transfer of the current affected mineral claim, or
Note-- See clause 200, which provides for how affected mineral claims must
be dealt with if transferred before the commencement.
(b) an expired affected mineral claim.
Note-- See clause 201, which provides for how expired affected mineral claims
must be dealt with.
200 Determining current affected mineral claims that have been transferred
(1) This clause applies if, before the commencement, a person purported to
transfer a current affected mineral claim to another person (the transferee).
(2) From the commencement--
(a) for a current affected mineral claim that was purportedly granted during
the relevant period, whether or not purportedly renewed during the
relevant period--the application for the grant of the affected mineral
claim is taken to be an application for the grant of the mineral claim
made on the commencement, and
(b) for a current affected mineral claim that was granted before the relevant
period and purportedly renewed only once during the relevant period--
the application for the renewal of the affected mineral claim during the
relevant period is taken to be an application for the renewal of the
mineral claim made on the commencement, and
(c) for a current affected mineral claim that was granted before the relevant
period and purportedly renewed more than once during the relevant
period--the application for the first renewal of the affected mineral
claim during the relevant period is taken to be an application for the
renewal of the mineral claim made on the commencement.
(3) For subclause (2)(a)-(c), the applicant for the application taken to be made on
the commencement is taken to be the person who first purportedly transferred
the current affected mineral claim.
(4) To avoid doubt, sections 178(2) and 197(2) do not apply to an application
taken to be made under subclause (2).
(5) The Secretary must, despite any other provision of this Act, refuse an
application for a mineral claim over land subject to a current affected mineral
claim if the applicant purported to transfer the current affected mineral claim
to another person during the relevant period, including an application taken to
be made under subclause (2).
(6) From the commencement, the current transferee has the sole right during the
prescribed period to apply for a mineral claim over land subject to the current
affected mineral claim.
(7) An application referred to in subclause (6) must be determined in accordance
with this Act as in force on the date the determination is made.
(8) In determining an application referred to in subclause (6), the Secretary may,
by written notice given to the applicant, require the applicant to give the
Secretary, by the date stated in the notice, additional information reasonably
required to decide the application.
(9) If the applicant does not give the additional information as required by the
notice, including by the date stated in the notice, the application may be
rejected by the Secretary.
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Mining Amendment (Mineral Claims--Opal) Bill 2023 [NSW]
Schedule 1 Amendment of Mining Act 1992 No 29
(10) Also, in determining an application referred to in subclause (6), the Secretary
may be satisfied the applicant has complied with section 266(4)(a) if the
applicant or a previous holder of the affected mineral claim paid the standard
compensation payable when--
(a) the affected mineral claim was last purportedly granted or renewed
before the commencement, or
(b) the application is determined by the Secretary.
Example-- If the standard compensation payable when an application is determined
is more than the standard compensation payable when the claim was last purportedly
granted or renewed, the Secretary may require the applicant to pay the difference.
(11) Without limiting subclause (6), in granting an application made under that
subclause, a condition may be imposed or varied in accordance with this Act.
(12) In this clause--
prescribed period means the period--
(a) starting on the commencement, and
(b) ending on 22 November 2023.
201 Expired etc affected mineral claims
(1) This clause applies to--
(a) an expired affected mineral claim, or
(b) an application for the grant or renewal of an affected mineral claim that
was withdrawn during the relevant period.
(2) Section 209 does not apply in relation to the affected mineral claim, and an
application to grant or renew the affected mineral claim, including an
application under clause 199, is taken to have been finally disposed of on the
date on which--
(a) the affected mineral claim ceased to have effect or was cancelled, or
(b) the application was withdrawn.
202 Devolution of rights--application made before commencement
(1) This clause applies if an application under section 202 in relation to an affected
mineral claim--
(a) was purportedly made but not decided before the commencement, or
(b) was purportedly decided before the commencement and the name of the
applicant was recorded as the holder of the mineral claim.
(2) For subclause (1)(a), the application may be dealt with under section 202 as if
it were validly made.
(3) For subclause (1)(b), the application is taken to have been validly made and
the name of the applicant validly recorded as the holder of the mineral claim.
203 Devolution of rights--application under clause 199
(1) This clause applies if--
(a) under clause 199, an application for an affected mineral claim is taken
to be an application for the grant or renewal of a mineral claim, and
(b) the person who, under clause 199, would be the applicant for the
application dies before the application is determined by the Secretary.
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Mining Amendment (Mineral Claims--Opal) Bill 2023 [NSW]
Schedule 1 Amendment of Mining Act 1992 No 29
(2) The person on whom the rights of the applicant have, or would have but for
any invalidity in relation to the application or affected mineral claim, devolved
by operation of law may apply, under section 202, to the Secretary to have the
person's name recorded as the holder of the mineral claim.
(3) For subclause (2), the application may be dealt with under section 202 as if it
were validly made.
(4) The Secretary may reject an application referred to in subclause (2) if it is
made more than 12 months after the assent date.
204 Devolution of rights--impact on number of mineral claims that may be held by
persons
(1) This clause applies if, under this Act, a condition limits the number of mineral
claims that may be held by a person.
(2) The condition does not operate to prevent the Secretary granting a mineral
claim, as a result of one of the following applications in relation to an affected
mineral claim, if the applicant is a person recorded under section 202 as a
person on whom the rights of the holder of the affected mineral claim have
devolved--
(a) an application taken to have been made under clause 199(1) in relation
to the affected mineral claim,
(b) an application referred to in clause 200(6) in relation to the affected
mineral claim.
205 Rehabilitation and other compliance matters
(1) This clause applies if--
(a) an affected mineral claim was purportedly subject to a condition in
relation to the rehabilitation of disturbed land or water, or
(b) an affected mineral claim was purportedly subject to another condition,
or
(c) the holder of an affected mineral claim or another person entered land
and exercised rights in accordance with the mineral claim.
(2) For subclause (1), until the relevant date for the affected mineral claim--
(a) the affected mineral claim is taken to be, and always to have been,
subject to the condition as if the affected mineral claim had been validly
granted, renewed or transferred, and
(b) the holder of the affected mineral claim or other person is taken to have,
and always to have had, the power to enter the land and exercise rights
in accordance with the mineral claim as if the affected mineral claim
had been validly granted, renewed or transferred.
(3) Without limiting subclause (2)(b), a condition to which the affected mineral
claim is subject may be enforced on and after the commencement.
(4) In this clause--
relevant date means--
(a) for a current affected mineral claim--the prescribed date, or
(b) for an expired affected mineral claim--the date the mineral claim
ceased to have effect or was cancelled.
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Schedule 1 Amendment of Mining Act 1992 No 29
206 Collection, expenditure and refund of money
(1) A fee, levy, duty or other money collected by or on behalf of the Crown, a
landholder or another person before the commencement in relation to an
affected mineral claim is taken to be valid.
(2) The expenditure of a fee, levy, duty or other money by or on behalf of the
Crown, a landholder or another person before, on or after the commencement
in relation to an affected mineral claim is taken to be valid.
(3) The refund of a fee, levy, duty or other money by or on behalf of the Crown,
a landholder or another person before, on or after the commencement in
relation to an affected mineral claim is taken to be valid, whether the refund
was--
(a) on the Secretary's own initiative, or
(b) on application by another person.
Example-- After the commencement, a fee paid in relation to an affected mineral claim
was refunded on the basis the affected mineral claim was not valid. Despite the mineral
claim being validated by the operation of this part, the refund of the fee continues to be
valid.
207 Legal claims
(1) No claim for compensation or other legal action arises against the Crown or
any other person as a result of a decision about the grant, renewal or transfer
of, or other action taken in relation to, a mineral claim if that decision or other
action would, but for this part, be invalid or unlawful because of a failure
before the commencement to comply with section 266(4).
(2) In this clause--
compensation includes--
(a) damages, and
(b) other forms of monetary compensation, and
(c) any other amount, whether described as compensation or not, payable
under an instrument.
208 Land claims
(1) Nothing in this part affects a land claim made before the assent date.
(2) In this clause--
land claim has the same meaning as in the Aboriginal Land Rights Act 1983.
209 Native title
The operation of clause 197 or 198, to the extent the operation of the clause
relates to anything done before the assent date, is taken to be an act to which
the Native Title (New South Wales) Act 1994, section 104A applies.
210 Regulations for this part
(1) The regulations may provide for the following matters--
(a) the circumstances in which a provision in this part will not apply to a
mineral claim or a class of mineral claims,
(b) the date on which a provision in this part will commence or cease to
have effect in relation to a mineral claim or a class of mineral claims,
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Mining Amendment (Mineral Claims--Opal) Bill 2023 [NSW]
Schedule 1 Amendment of Mining Act 1992 No 29
(c) the date, not more than 5 years after the date the mineral claim
purportedly took effect, that the term of an affected mineral claim or a
class of affected mineral claims expires.
(2) To avoid doubt, the power to make regulations under subclause (1) is in
addition to the power to make regulations under this schedule, clause 1.
(3) A regulation made under subclause (1) has effect despite anything to the
contrary in this part.
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Mining Amendment (Mineral Claims--Opal) Bill 2023 [NSW]
Schedule 2 Amendment of Native Title (New South Wales) Act 1994 No 45
Schedule 2 Amendment of Native Title (New South Wales) Act
1994 No 45
Section 104A Saving of native title rights and interests with respect to national parks
and other reservations, dedications or declarations
Insert after section 104A(1)(h)--
(i) the validation of an affected mineral claim under the Mining Act 1992,
Schedule 6, Part 28.
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